KABAL SINGH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2766/2018

[2021] HKCFI 1179

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2766 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  The Applicant is an Indian national.  He arrived at Hong Kong on 10 August 2014 and was permitted to stay until 12 August 2014. He overstayed and surrendered to the Immigration Department on 2 September 2014 stating that he wished to make a non-refoulement claim.

2.  In due course, his non-refoulement claim was assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely:

(1)  risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(2)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”);

(3)  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and

(4)  risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 Risk”).

3.  By a Notice of Decision dated 26 March 2018 (the “Notice”), the Director of Immigration (the “Director”) rejected his claim.  On 3 April 2018, the Applicant lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director.   On 22 November 2018, the Board dismissed his appeal (the “Decision”).  On 5 December 2018, he applied for leave to apply for judicial review against the Board’s Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service and incontrovertible evidence. 

5.  The Applicant used to work in Dubai.  He returned to India for vacation in early 2013.  On 11 February 2013, the Applicant’s brother was critically injured in a hit-and-run car accident.  He and his family members rushed to the scene.  The driver of the offending vehicle had left.  He demanded the accompanying passengers to disclose the identity of the driver.  The passengers refused.  In the heat of the moment, he stabbed one of them with a sword which he carried with him as a baptised Sikh.  His brother died on 20 February 2013.  Then the Applicant returned to Dubai.  While in Dubai, his father told him that the passenger he stabbed had filed a first information report with the police against him, and the police were looking for him.  His father told him that the unknown passengers were also looking for him.  He and his father believed that those passengers would kill him if they found him.

6.  The Applicant returned to India in 2014 because he was not able to extend his employment in Dubai.  He borrowed 75,000 Indian rupees from his neighbour, Gurdas Bhullar (“Gurdas”), to buy a taxi.  However, two months after starting his taxi operation, he had an accident and the taxi was totally damaged.  He was unable to repay Gurdas. Gurdas threatened to kill him.  He left his home and moved from place to place to avoid Gurdas.  However, he was located by Gurdas and his gang.  They beat him up and he fainted.  When he regained conscious, he found himself in hospital.  After he discharged himself from hospital, the Applicant moved from place to place again until he flew to Hong Kong on 9 August 2014.

7.  The Applicant maintained contact with his family.  His wife told him that Gurdas was still disturbing her trying to find out his whereabouts.  He did not consider internal relocation a possible option because he was wanted by the Indian police for the stabbing of the unknown passenger; and Gurdas would also be able to locate him through circulating and posting his photograph in the newspaper.

The finding of the Board

8.  The Board basically did not believe the Applicant’s evidence.  The Board was not satisfied that the Applicant has told the truth about his case. 

9.  The Board identified numerous inconsistencies between his evidence contained in his non-refoulement claim form and his evidence before the Board, for example, the terms of Gurdas’ loan, Gurdas chasing him for the loan and visiting his family, what his father told him about the passengers filing a case against him, etc.  The Board considered the differences and omissions were significant and reflected poorly on the Applicant’s credibility.  The Board discussed its concerns about the inconsistencies with the Applicant but received no satisfactory explanation.  It did not accept the Applicant had taken a loan from Gurdas. 

10.  The Board noted that there was no mention about the stabbing in the investigation police officers’ statements in the first information report produced by the Applicant relating to hit-and-run accident; and that on the Applicant’s own case, he had no problem exiting and entering India.  The Board did not accept the Applicant’s evidence about his having stabbed an unknown passenger and that the police were looking for him.  It did not accept the Applicant left India to avoid harm and his fears in returning to India for the reasons he claimed or for any other reason. 

11.  The Board did not accept anyone in India had or has any adverse interest in the Applicant and that there is a real risk anyone in India will harm the Applicant for any of the reasons he has claimed, or for any other reason.  The Board considered the Applicant would not be at risk of any harm if he is returned to India.  Having failed to prove his factual case, the Applicant has failed to discharge the burden of proving his entitlement to protection under the four applicable grounds.

12.  Furthermore, the Applicant has not claimed, and on the basis of the available Country of Origin Information (“COI”), the Board did not accept there exists in India a pattern of gross, flagrant or mass violations of human rights that would indicate that there are substantial grounds to believe the Applicant would be in danger of torture on that basis in India.

The applicable legal principles     

13.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[1].

Grounds for judicial review

14.  The Applicant lodged a seventeen-page of grounds in support of his application.  Many of the grounds are repetitive.  The essence of his complaint revolve around: (1) the Board’s finding of facts; (2) procedural unfairness, (3) lack of language assistance and (3) the Board’s failure to research about the COI.

Procedural unfairness: COI

15.  The Applicant advanced many points under different headings.  Many of these points are just statement of legal principles.  There are no particulars as to the facts in the instant case to which the principles apply.

16.  In page 5 of his grounds, the Applicant complained that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that he did not satisfy the requirement.  This cannot be a valid ground for application for leave.  If an applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the notice and dismiss the appeal.  The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision.  The answer to this question will become obvious after considering the other grounds.

17.  In the same page, the Applicant complained that the Board acted in a procedurally unfair manner in dealing with the appeal; that the Board’s Decision to refuse the appeal was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness; and that the Board failed to meet the greater care and duty owed to a self-represented claimant.  No particulars were given as to what was procedurally unfair; in what way was the Decision unreasonable or irrational; and in what was the duty which the Board breached and in what way did the Board breach that duty.  It appears that most of these grounds are empty assertions.

18.  At page 17, under the heading of “Grounds of Review - Procedural Impropriety/Unfairness”, the Applicant gave the following particulars of unfairness:

“1. The Adjudicator failed to take sufficient steps to obtain further COI research materials to fully understand and, as such, to put proper weight on relevant facts, namely the human rights situation in India, at time of the Applicant’s threatened torture and threats to his life and the threats to his life and subsequent killing of even greater significance, there was also insufficient inquiry into COI at the Adjudicator’s Decision, the Adjudicator.

2. The COI citations the Adjudicator referred to where limited in number and insufficient, some even being outdated and fairly decided the Applicant’s torture claim in terms of the human rights circumstances in India, the veracity and credibility of his claim. In particular, the Adjudicator failed to take into account:

(1) USHR 2010;

(2) USRF 2010; and

(3) The International Commission of Jurists (ICJ) “Report on the ICJ Mission to India” Autumn 2011, Available at http://www.icj.org/.

3. These three citation had they been considered at al (sic) by the Adjudicator, the content therein would have provided sufficient COI corroborated the Applicant’s version of events and legitimate fears. It would have also been sufficient to support finding of a consistent pattern of human rights abuses in India and there is a lack of state protection.

4. The Adjudicator failed to fulfil her positive obligation to obtain the requisite documents, which are substantial as can be seen in the Relevant Background, to properly and fairly adjudicate upon the Applicant’s claim.  As such there has been a substantial procedural impropriety has made the present claim procedure unfair.”

19.  The Board did not rely on the COI for his Decision.  At paragraph 91 of the Decision, the Adjudicator rejected the Applicant’s evidence that he would be at risk of any harm if returned to India.  Because no risk having been proved, the Board did not have to go that far as to find that the Applicant could avoid or avert the risk of harm by resorting to state protection and internal relocation.  The Board did not have to rely on any COI relating to state protection and internal relocation.  In the circumstances, the Applicant’s complaint about the Board cherry-picking COI and erroneous finding about availability of state protection is groundless.

20.  At paragraph 101 of the Decision, the Adjudicator did mention that on the basis of the available COI, the Board did not accept that there exists in India a pattern of gross, flagrant or mass violations of human rights that would indicate that there are substantial grounds to believe the Applicant would be in danger of torture on that basis in India.  That was said in the context that even if there was a risk of harm of sufficient level of severity which was deliberately inflicted (which the Board refused to accept), there was no evidence that it would be inflicted by a public official or with his consent or acquiescence as to qualify as a torture within the meaning of section 37U(1) of the Immigration Ordinance.  The finding of an absence of such pattern of gross, flagrant or mass violations of human rights was not necessary for the Decision. Besides, as was noted by the Board, the Applicant did not claim there were any COI as to the presence of such mass violation of human rights in India.

21.  As for the overall complaint about the Adjudicator’s failure to carry out sufficient research into the COI, the extent and depth of such research is a matter for the Board’s discretion to be exercised according to what the factual circumstances call for.  The Applicant having failed to satisfy the Board of his genuine fear and risk of harm, the Court was of the view that adequacy of the research about COI was a non-issue.

22.  It is not clear what COI the Board had considered.  It is reasonable to assume that it had considered the COI provided by the Director.  The COI provided by the Director are all from credible and official sources, including Country Information and Guidance, India: Background information, including actors of protection, and internal relocation dated February 2015issued by the United Kingdom Home Office; Country Reports on Human Rights Practices for 2016 of India published by the United States Department of State; The World Fact Book – India updated on 15 March 2018, issued by the United States Central Intelligence Agency; and newspaper reports. 

23.  The Applicant said that these COI were outdated and mentioned three particular pieces of COI.  The Court was unable to ascertain what USHR 2010 and USRF 2010 were.  The Applicant was unable to provide copies or further particulars.  He was also unable to assist as to what particular COI he wished to rely on from the Report on the ICJ Mission to India.  The Court was unable to see how such COI could corroborate the Applicant’s version of events and legitimate fears or could support finding of a consistent pattern of human rights abuses in India and non-availability of state protection and internal relocation.

24.  In conclusion, the Court was unable to see how the Board’s Decision could be said to be unreasonable or irrational as a result of the Board’s reference to the COI available to the Board, and was unable to find any procedural unfairness or irregularity arising from the adequacy or otherwise of the Board’s researches about COI.      

Procedural unfairness: Lack of legal and language assistance

25.  The Applicant complained that he was not provided legal assistance in preparing his appeal and in the appeal before the Board; that the appeal bundle was provided only a few days before the hearing; that the documents in the bundle were in English and he was not provided interpretation services; as a result, he was confused at the hearing of the appeal; and that the Decision was not translated to him.

26.  In Re Zafar Muazam[2], Re Zunariyah[3], Re Zahid Abbas[4], Re Tariq Farhan[5], and Re Lopchan Subash[6], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[7] nor the judgment of FB v. Director of Immigration[8] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. 

27.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview.  The Notice of the Director was issued to him on 26 March 2018.  It was not until 8 June 2018 that the oral hearing was held.  The Notice is in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing nearly three months to seek assistance from among his own circle.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board.    It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

28.  His complaint about lack of translation of the Decision is frivolous.  The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal. 

29.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

Irrationality and unreasonableness in the Decision

30.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.

31.  The Board set out the evidence of the Applicant in seven pages.  It then devoted another seven pages to analyse his evidence.  It found the Applicant not credible and gave full reasons for disbelieving him.  These are finding of facts within the realm of the fact finding tribunal, which the courts will seldom intervene.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.   

Conclusion

32.  Accordingly, the Court concluded that the Decision of the Board was utterly without fault.  There was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim is not reasonable arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review was refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1

[1]  [2018] HKCA 524 at para 14(1)

[2]  cacv 2/2018, (unreported) 23 March 2018

[3]  [2018] HKCA 14

[4]  [2018] HKCA 15

[5]  [2018] HKCA 17

[6]  [2018] HKCA 37

[7]  (2004) 7 HKCFAR 187

[8]  HCAL 51 of 2007, (unreported) 5 December 2008